May 20, 2019

Resolve Client Conflicts Through Narrative Mediation

ADR2015Editor’s Note: This article is excerpted from materials written by C. Adam Foster of Hoban & Feola, LLC, who will present “Once Upon a Mediation: The Role of Narrative in Alternative Dispute Resolution” at CLE’s 9th Annual Colorado ADR Conference on October 7, 2015. See below for registration information.

Each person tells themselves a story about how their past experiences have shaped them as a person and how these experiences, along with their goals and values, define what is important to them in life. In other words, personal narrative gives meaning to past experiences, which define the individual’s self-image in the present and in turn circumscribes how they view their relationships with others and how they evaluate their choices moving forward. Individuals create multiple narratives in different contexts that inform how they see themselves in various social roles, for instance as professionals, spouses, parents and friends. These individual narratives stand in dialog with larger social narratives involving class, race, gender, sexual orientation, religion and many other aspects of identity. Moreover, the existence of these narratives and their effect on the construction of identity may be more or less consciously acknowledged depending on the individual and their circumstances at any given time. Regardless of whether consciously or (more often) subconsciously, each individual crafts a narrative that reaffirms his or her values and identity. Thus, “[t]he stories that one constructs fit into a wider web of stories relating to other stories created by the same individual, to stories created by members of one’s social network, and even to cultural stories on a societal level” (Hansen, 2003). The notion of interrelated individual narrative and larger scale social discourse has been adopted into the practice of Narrative Mediation. Kure & Winslade (2010) elaborate:

In particular, narrative mediators focus on what can be coined “relational discourses,” which are local systems of meaning that shape the identities of parties in a relationship. These relational discourses map on to larger, more pervasive, discourses, or orders of discourse, but at the personal level, they are manifest through the ‘positioning ’of each of the parties in a power relation.

This idea of individual identity as a product of multiple individual and group discourses and narratives dovetails with the concept of “discursive positioning.” As Winslade (2003) writes: “As people speak, they position themselves not just in immediate relation to other person(s) in the conversation, but also in relation to utterances in other conversations.” Furthermore, discursive positioning occurs not just in relation to past conversations that the parties have had with each other, but innumerable conversations they have had with third parties.

The statement of facts is the most important portion of any legal brief because citation to legal authorities is meaningless unless the decision maker understands the specific factual context of the case. Judges, juries and arbitrators want to achieve a fair outcome. A properly crafted narrative creates moral tension, suggests a proper result and makes the decision maker care about the outcome. Moreover, a great deal of trial strategy focuses on advancing the client’s narrative and suppressing or disrupting the opposing party’s narrative. A compelling narrative has “integrity” in the sense that the facts fit together in a logical fashion and support the party’s message.

Attorneys must recognize that the audience is different in a bench trial, jury trial, arbitration or mediation—and attorneys should tailor this narrative to the appropriate audience while telling the story the client needs to tell. Moreover, each individual—the parties but also the attorneys and mediator, arbitrator, judge, jury, etc.—is trying to make sense of two related, but distinct, narratives: (i) a narrative regarding the facts of case and a desirable outcome; and (ii) a meta-narrative regarding who they are as a person and how case fits in with their life story.

In mediation making sure that the parties feel heard is critical. Parties want to achieve a favorable outcome but also to feel heard and validated in the process, so a good settlement accomplishes both. A party who achieves favorable financial outcome but doesn’t feel heard feels dissatisfied and may try to undermine the settlement when the opportunity arises.

Common sense dictates that it will usually be more important for parties to agree on certain elements of a joint narrative if they will be in a continuing relationship (e.g., in a workplace or parenting time dispute) versus a one-off transaction (e.g., a tort settlement for money damages). But it is often necessary to establish legal and factual stipulations to settle any type of dispute. Litigation will result in a judgment, but may not further agreement on a joint narrative.

C. Adam Foster, Esq., serves as Special Counsel at Hoban and Feola, where his practice focuses on the representation of business owners and mediation of business cases. He received a B.A. in Anthropology in 1998 from the University of Colorado at Boulder and was elected to Phi Beta Kappa. Adam returned to the University of Colorado at Boulder to attend law school, where he served as the Articles Editor of the University of Colorado Law Review, won the CU-DU Cup Mock Trial Competition, and received the Legal Aid Award for Outstanding Advocate. Adam joined Hoban & Feola in September of 2010 and today focuses on representing small to medium-sized business owners—including entrepreneurs within the burgeoning cannabis and industrial hemp industries—in transactions and litigation. He also mediates cases involving business, partnership and employment disputes. He speaks Spanish fluently and volunteers regularly, providing pro bono legal referrals through the Colorado Lawyers Committee Legal Nights and Project Homeless Connect.

 

CLE Program: 9th Annual Colorado ADR Conference

This CLE presentation will take place Wednesday, October 7, 2015 at the Renaissance Hotel in Denver. Live program only – click here to register or call (303) 860-0608.

Colorado Court of Appeals: Signatory to Arbitration Agreement May Not Equitably Avoid Arbitration After Acknowledging Agreement

The Colorado Court of Appeals issued its opinion in Meister v. Stout on Thursday, May 7, 2015.

First Impression—Compelling Arbitration on a Non-signatory—Appellate Attorney Fees—Confirmation of Arbitration Award.

DeLollis and Stout founded an information technology company, Venti Solutions, LLC. Meister invested in Venti and became a member of the company. The purchase agreement signed by Venti, Stout, DeLollis, and Meister granted Meister a 20% interest in Venti in exchange for a capital contribution of $500,000.

The agreement incorporated by reference the Venti operating agreement, which was executed by Stout and DeLollis. The operating agreement had a dispute resolution article providing that arbitration was the exclusive mechanism for resolving all disputes.

In 2012, Meister sued DeLollis, Stout, and Venti. DeLollis and Venti moved to compel arbitration, and the court so ordered. The arbitrator dismissed Meister’s claims with prejudice and awarded $375,738.70 against him on Venti’s breach of contract counterclaim. The district court confirmed the award.

Meister appealed on the ground that arbitration should not have been compulsory as to his claims against Venti, a non-signatory to the operating agreement. Under Colorado law, both signatory and non-signatory parties may be bound by an arbitration agreement if so dictated by ordinary principles of contract law. Equitable estoppel may also be used to bind parties to an arbitration agreement.

The Court of Appeals held that Meister’s claims against Venti were subject to arbitration under an estoppel theory. All of his claims referenced or presumed and relied on the existence of the operating agreement. He was therefore equitably estopped from avoiding arbitration of his claims against Venti. As additional support for this conclusion, the Court noted that Meister’s claims alleged interconnected and concerted misconduct among Venti, Stout, and DeLollis, and it was admitted that Stout and DeLollis were subject to the operating agreement and the arbitration provision.

Meister also challenged the district court’s confirmation of the arbitration award. The Venti operating agreement required arbitration to take place not more than sixty days after selection of an arbitrator. Originally scheduled for July 9 and 10, 2013, arbitration was postponed to September 3 and 4, after Meister failed to pay the arbitration deposit. Meister was also under travel restrictions stemming from an unrelated federal indictment in Florida. He did not disclose these criminal proceedings to the arbitrator or to defendants. He filed a motion to appear electronically on the basis of poor health. Defendants discovered his involvement in criminal proceedings and Meister refused the arbitrator’s requests to verify his health status. His request to appear electronically was denied. The Court affirmed the district court’s ruling and remanded the case for determination of the appellees’ attorney fees and costs.

Summary and full case available here, courtesy of The Colorado Lawyer.

Walking the Talk: An Interview with Judy Mares-Dixon

JudyMaresDixonJudy Mares-Dixon, M.A., is well experienced in conflict resolution. Since 1986, she has been working in the dispute resolution field as a trainer, mediator, coach, facilitator, consultant, and dispute resolution systems designer. We are honored to have Judy return to CLE for our 40 Hour Mediation Training beginning on August 11, and are excited to present an interview with Judy.

CLE: Thank you for allowing us to interview you. First, what brought you to the field of conflict resolution?

Judy: I was working full-time as a contract negotiator for the state. I really enjoyed the high-energy interaction and the relationship with customers from around the state. I’ve always been fueled by negotiations. I found out that the City of Boulder was looking for mediators to help resolve landlord-tenant and neighbor-neighbor disputes, so I went through their training course — it’s similar to the 40 Hour course I teach at CLE — and absolutely loved it. I continued working full-time for the state and would mediate for Boulder’s program at night. Some nights, I would return home at 9 o’clock or later and could not sleep because I was so charged up from the excitement of the mediation. The interaction between people who start out so far apart, and their capacity to find intelligent solutions, is fascinating to me.

CLE: What is your favorite part of doing dispute resolution?

Judy: My favorite part is assisting people who have not been able to get through their conflicts to analyze their situation and come up with smart solutions. I love being able to effectively analyze situations and find the pros and cons of a variety of ideas and really assist people in finding the best solutions for everyone, especially in situations where one or more parties think it’s hopeless. I love really thinking about what it’s going to take to solve the problem.

CLE: How do you apply the techniques you teach to your day-to-day life?

Judy: There is always an exchange in business. My colleagues and I are always looking at our projects to decide who is going to do which project, whose skills match best with the job at hand, and we negotiate. I think one of the keys to being a successful mediator is that you have to walk the talk – it is critically important to the job. I work with a small number of associates and we’ve been together for several years. The reason we work so well together and have such a fun, respectful relationship, is that we all walk the talk. We expect high quality work — we expect perfection and are hard on ourselves — but we are good at what we do because we walk the talk. It’s critically important to success as a mediator.

CLE: You mentioned situations where one or more parties think it’s hopeless. Can you share with us a story of a conflict that seemed impossible that you helped resolve?

Judy: I once did a mediation for five physicians who co-owned a practice. Two of the physicians were very senior and three were very junior — new to medicine and new to the practice. Three of the physicians had serious conflicts with each other. There were concerns as to whether everyone was doing their fair share — bringing enough business and revenue to the practice, contributing the right amount. They came to me because they were not sure if they should try to work together or if there should be a buy-out of some of the partners. They felt hopeless and frustrated to say the least — they weren’t getting what they wanted from one another. Ultimately, they decided to stay together in the practice. We developed a monthly evaluation tool so the partners could evaluate who was bringing in revenue and how the work load was shared.

One other thing they were quick to identify was how poorly they responded to conflicts. Three of them would duck and run, one would try to bring the issue to the table, and the other would get aggressive. We worked out a plan for how they could address their concerns when conflicts arise in the future, and expected time frames for resolution of future conflicts.

 

CLE is honored to have Judy return for our 40 Hour Mediation Training. Join us on August 11, 12, 13, 18, and 19 for our 40 Hour Mediation Training with renowned mediator Judy Mares-Dixon. To register, click the links below or call (303) 860-0608.

CLE Program: 40 Hour Mediation Training

This CLE presentation will take place on August 11, 12, 13, 18, and 19, 2014. Click here to register for the live program. You can also register by phone at (303) 860-0608.